Citation Nr: 0531648
Decision Date: 11/21/05 Archive Date: 11/30/05
DOCKET NO. 00 06-496 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
the Commonwealth of Puerto Rico
THE ISSUE
Entitlement to a rating in excess of 30 percent for post-
operative residuals of a fracture of the right tibia and
fibula with degenerative joint disease.
REPRESENTATION
Appellant represented by: Puerto Rico Public Advocate
for Veterans Affairs
INTRODUCTION
The veteran served on active duty from July 1980 to July
1984.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from an August 1999 rating decision of
the Department of Veterans Affairs Regional Office (RO) in
San Juan, the Commonwealth of Puerto Rico. In the November
2003 remand issued by the Board, the RO was instructed to
address the veteran's claim of service connection for a left
leg disability secondary to the service-connected post-
operative residuals of a fracture of the right tibia and
fibula with degenerative joint disease. The RO has taken no
action in this regard and this issue is again referred to the
RO for appropriate action.
FINDINGS OF FACT
The veteran's service-connected post-operative residuals of a
fracture of the right tibia and fibula with degenerative
joint disease is rated as 30 percent disabling, and her
service connected tender scar of the right ankle is rated as
10 percent disabling.
CONCLUSION OF LAW
Combined evaluations for disabilities below the knee shall
not exceed the maximum 40 percent evaluation available for
amputation. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§
3.321, 3.159, 4.1, 4.2, 4.10, 4.25, 4.45, 4.68, 4.71a,
Diagnostic Codes 5003, 5262, 5270-5274 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran contends she should be awarded an increased
rating for her service-connected post-operative residuals of
a fracture of the right tibia and fibula with degenerative
joint disease. She alleges that the increase is warranted
due to the many operations she has undergone and because
there is malunion with marked knee or ankle disability. (See
veteran's statement received February 2000.) She reports
hospitalization in March 1997, March and April 1998, and
March 1999.
Disability evaluations are determined by evaluating the
extent to which the veteran's service-connected disabilities
affect his ability to function under the ordinary conditions
of daily life, including employment, by comparing her
symptomatology with the criteria set forth in the VA Schedule
for Rating Disabilities (Rating Schedule). See 38 U.S.C.A. §
1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2005).
The veteran's right ankle disability has been rated as 30
percent disabling under diagnostic code 5262 which provides
for impairment of the tibia and fibula. A higher rating of
40 percent under this diagnostic code requires a showing of
nonunion of the tibia and fibula with loose motion requiring
a brace. This level of disability has not been demonstrated
in the medical record, and was specifically addressed and
found not existent on VA examination in May 2004. Thus,
entitlement to a higher rating for the veteran's right ankle
disability requires consideration of other potentially
applicable rating criteria.
Disabilities of the ankle are addressed under diagnostic
codes 5270 through 5274. Several of these diagnostic codes
are clearly not applicable to the veteran's ankle disability:
5270 (ankylosis); 5272 (ankylosis of the subastragalar or
tarsal joint); 5273 (malunion of os calcis or astragalus);
and 5274 (astragalectomy). The medical evidence does not
show that the veteran has any of the disorders associated
with her right ankle described in the rating codes
enumerated.
The veteran has been service connected for post-operative
residuals of a fracture of the right tibia and fibula with
degenerative joint disease. Under Esteban v. Brown, 6 Vet.
App. 259 (1994), impairments associated with a veteran's
service- connected disability may be rated separately unless
they constitute the same disability or the same
manifestation.
VA Examiners during this claim period have referred to July
1996 x-ray study of the right ankle showing degenerative
joint disease. Degenerative arthritis established by x-ray
findings is rated on the basis of limitation of motion under
the appropriate diagnostic codes for the specific joint or
joints involved. See 38 C.F.R. § 4.71a, Diagnostic Code
5003. In this case, the right ankle is the affected joint
involved and diagnostic code 5271 is potentially applicable.
In its rating decision of July 2005, the RO rejected a
separate rating on the basis of x-ray evidence of
degenerative joint disease finding that any symptomatology
(such as pain and limited motion) overlaps with the
symptomatology on which the 30 percent rating under
diagnostic code 5262 was based. Based upon review of the
evidence, the Board agrees and finds that a separate rating
under diagnostic code 5271 is not in order. The medical
evidence demonstrates that when the veteran was examined by
VA in March 2005, she had very limited range of motion of the
right ankle due to severe pain and that there was pain to
deep palpation of all facets of that joint. This is
demonstrative of marked ankle disability when coupled with
other VA reports showing that it is difficult for her to walk
and negotiate stairs. A separate rating may be contemplated
under diagnostic code 5271 (which provides for limited motion
of the ankle) but for the amputation rule found at 38 C.F.R.
§ 4.68.
The amputation rule states that the combined rating for
disabilities of an extremity shall not exceed the rating for
the amputation at the elective level, were amputation to be
performed. For example, the combined evaluations for
disabilities below the knee shall not exceed the 40 percent
evaluation, Diagnostic Code 5165. This 40 percent rating may
be further combined with evaluation for disabilities above
the knee, but not to exceed the above the knee amputation
elective level.
The veteran is currently is receipt of a 30 percent rating
for her right ankle disability and a 10 percent rating for a
tender scar of the right ankle. Under 38 C.F.R. § 4.25, the
veteran's combined left lower extremity disability rating is
40 percent and as the hypothetical elective level of
amputation would be below the knee joint, a maximum 40
percent combined rating would be warranted under 38 C.F.R. §
4.68. No rating higher than 40 percent is warranted for
residuals of the fracture of the right ankle.
In exceptional cases where a schedular evaluation is found to
be inadequate, the RO may refer a claim to the Chief Benefits
Director or the Director, Compensation and Pension Service
for consideration of "an extra-schedular evaluation
commensurate with the average earning capacity impairment due
exclusively to the service-connected disability or
disabilities." 38 C.F.R. § 3.321(b)(1) (2005). "The
governing norm in these exceptional cases is: A finding that
the case presents such an exceptional or unusual disability
picture with such related factors as marked interference with
employment or frequent periods of hospitalization as to
render impractical the application of the regular schedular
standards." 38 C.F.R. § 3.321(b)(1) (2005).
The schedular evaluations for the disabilities in this case
are not inadequate. There is no evidence of an exceptional
disability picture in this case. The veteran has not
required any recent periods of hospitalization for her
service-connected right ankle disability.
It is undisputed that the veteran's service-connected
disability has an adverse effect on her employment, but it
bears emphasizing that the schedular rating criteria are
designed to take such factors into account. The schedule is
intended to compensate for average impairments in earning
capacity resulting from service-connected disability in civil
occupations. 38 U.S.C.A. § 1155 (West 2002). "Generally,
the degrees of disability specified [in the rating schedule]
are considered adequate to compensate for considerable loss
of working time from exacerbations or illnesses proportionate
to the severity of the several grades of disability." 38
C.F.R. § 4.1 (2005). Therefore, given the lack of evidence
showing unusual disability not contemplated by the rating
schedule, the Board concludes that a remand to the RO for
referral of this issue to the VA Central Office for
consideration of an extraschedular evaluation under 38 C.F.R.
§ 3.321(b)(1) is not warranted.
Duty to Notify and Assist the Veteran
VA has fulfilled its duty to notify and to assist the veteran
in the development of her claim.
The Veterans Claims Assistance Act of 2000 (VCAA) requires
that when a complete or substantially complete application
for benefits is filed, VA must notify a veteran and her
representative, if any, of any information and medical or lay
evidence necessary to substantiate the claim. 38 U.S.C.A.
§§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.159(b)
(2005). VCAA notice must inform a veteran of (1) any
information and evidence not of record needed to substantiate
the claim; (2) what information VA will seek to provide; and
(3) what information the veteran is expected to provide.
Under 38 C.F.R. § 3.159(b)(1), VA must also ask the veteran
to submit any pertinent evidence in his possession.
The August 1999 rating decision in this case predated the
November 9, 2000 effective date of the VCAA; therefore, no
VCAA-compliant letter was sent prior to the rating decision.
Because such notice was not mandated at the time, there is no
error in the RO's not providing notice of the VCAA's
requirements prior to the initial adjudication decision in
this case.
In July 2003 and April 2004, the RO notified the veteran of
what VA had done and what she needed to do in connection with
her claim for increased rating. In both instances, the RO
and later, the Appeals Management Center mistakenly sent her
information related to what she must do in order to establish
service connection, but failed to provide her with the basic
elements of a successful increased rating claim. This was
remedied in the statement of the case and supplemental
statement of the case wherein she was given information
specific to her claim as to what was required for an
increased evaluation. The second letter asked her to send in
any additional evidence or information she may have regarding
her appeal and she did not respond.
There is reasonable basis to conclude that the veteran
understood what is pertinent to the claim, and, given
appropriate notice provided during the appeal period, that he
could supplement the record with medical evidence of her own,
if she has it, to show that an increased evaluation is
warranted. She has not done so, or informed the Board or RO
that additional evidence exists, but that she needs further
assistance to obtain it. The veteran did not specifically
claim that VA failed to comply with VCAA notice requirements,
or that he has any evidence in his possession required for
full and fair adjudication of this claim. See Mayfield v.
Nicholson, 19 Vet. App. 203 (2005). Thus, the Board does not
find prejudicial error with respect to the substantive
content of the VCAA notice in this case.
VA's duty to assist a claimant in substantiating his claim
(see 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c),
(d) (2005)) also has been satisfied. The "duty to assist"
contemplates that VA will help a claimant obtain relevant
records, whether or not the records are in federal custody,
and that VA will provide a medical examination and/or opinion
when necessary to make a decision on the claim. The record
includes C&P examination results, service medical records, VA
medical treatment records, and the veteran's written
statements. The veteran was given an opportunity to testify
before a Veterans Law Judge in connection with this claim,
but declined to exercise her right to do so. The Board has
obtained VA medical opinions pertinent to this claim, as
discussed above.
Furthermore, the Board finds that the VA has done everything
reasonably possible to assist the veteran. Additional efforts
to assist or notify her in perfect accord with the VCAA would
serve no useful purpose in light of the application of
38 C.F.R. § 68. See Soyini v. Derwinski, 1 Vet. App. 540,
546 (1991) (strict adherence to requirements in the law does
not dictate an unquestioning, blind adherence in the face of
overwhelming evidence in support of the result in a
particular case; such adherence would result in unnecessarily
imposing additional burdens on the VA with no benefit flowing
to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430
(1994) (remands which would only result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the veteran are to be avoided). Therefore, the Board
concludes that VA has met its duty to notify and assist
obligations.
ORDER
Entitlement to a rating in excess of 30 percent for post-
operative residuals of a fracture of the right tibia and
fibula with degenerative joint disease is denied.
____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs